Permit Extension Act Breathes New Life Into Pennsylvania Environmental Approvals

July 14, 2010

by JONATHAN E. RINDE and MICHAEL C. GROSS

MGKF Special Alert

In an effort to salvage countless real estate projects throughout the Commonwealth which have stalled due to economic conditions, Governor Rendell signed into law the Permit Extension Act, which automatically extends the expiration date of certain permits issued by the Pennsylvania Department of Environmental Protection ("PADEP") until July 1, 2013. With limited exceptions, this law explicitly applies to approvals, agreements, permits, authorizations and decisions (collectively "Approvals") for development or construction projects issued under various Pennsylvania environmental statutes including the Pennsylvania Clean Streams Law, the Sewage Facilities Act, the Stormwater Management Act and the Dam Safety Encroachment Act. The extension also applies to Soil Erosion and Sediment Control Plans approved by county conservation districts, and permits such as NPDES permits issued pursuant to the federal Clean Water Act, to the extent the Commonwealth has been empowered to administer, approve or otherwise authorize activities under that act. Equally important, the extension also covers non-environmental Approvals issued pursuant to other Pennsylvania statutes such as the Municipalities Planning Code and the Pennsylvania Construction Code.

Effect of Extension and How to Confirm. The new law applies to Approvals that were in effect on January 1, 2009 or after. These Approvals are now automatically extended, regardless of expiration date, without any notice required to the applicable agency (except if the Approval was issued by the City of Philadelphia) until July 1, 2013. Approval holders are authorized, but not required, to request written verification from the issuing government agency of the extension. If the government agency does not respond in 30 days, the extension of the Approval is "deemed approved." For Philadelphia-specific Approvals, extensions are valid twenty days after the Approval holder provides written notice to the applicable City agency of its intent to suspend the expiration date.

Approvals to Which the Extension Applies and Exclusions. Pennsylvania environmental permits impacted by the new law could include (and are not limited to) water quality management permits, NPDES Stormwater Construction permits, water obstruction and encroachment permits (i.e. Section 105 permits), sewage facility planning construction and operation permits and approvals and NPDES discharge permits. There are several noteworthy limits on extensions for PADEP Approvals: Approvals to facilitate discharges into "Exceptional Value" or "High Quality" waters of the Commonwealth or wetlands are excluded from the extension. Approvals for connections to public sewer systems are not automatically extended and are dictated by current capacity constraints. The new law also makes clear that it cannot modify any requirement necessary for the Commonwealth to retain federal delegation of certain environmental laws (such as the NPDES program). In addition to exceptions applicable to environmental Approvals, specific exceptions also apply to PENNDOT permits, "one call" determinations and benefits/approvals impacting Keystone Opportunity Zones.

Fees and Miscellaneous. Government agencies can charge a fee for extension of Approvals--up to 25 percent of the application fee (50 percent within the City of Philadelphia) up to a maximum of $5,000. The enforcement authority of government agencies is not altered by the legislation (e.g. Approvals can still be revoked for noncompliance).

By August 6, 2010, PADEP must publish a notice in the PA Bulletin specifying which PADEP Approvals are covered by the Permit Extension Act. We also believe that PADEP is developing guidance to be issued at about the same time that will answer, from PADEP's perspective, some issues not addressed by this new law, including its affect on Approvals which have expired between January 1, 2009 and now (e.g. Do they spring back to life?) and whether Section 404 wetlands permit issued by PADEP pursuant to the Pennsylvania State Programmatic General Permit will be similarly extended.

For more information regarding the potential applicability of the Permit Extension Act to existing environmental Approvals, please contact Jonathan Rinde (jrinde@mgkflaw.com) at 484-430-2325 or Michael Gross (mgross@mgkflaw.com) at 484-430-2321.